Purvis v. Department of Professional Regulation, Bd. of Veterinary Medicine, AX-497

• Decision Date: 16 November 1984
• Docket Number: No. AX-497,AX-497
• Citation: 461 So.2d 134
• Parties: Jake W. PURVIS, Appellant, v. DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF VETERINARY MEDICINE, Appellee.
• Court: Florida District Court of Appeals

Page 134

461 So.2d 134

Jake W. PURVIS, Appellant, v. DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF VETERINARY MEDICINE, Appellee.

No. AX-497.

District Court of Appeal of Florida First District.

Nov. 16, 1984.

William F. Casler, Sr., St. Petersburg, for appellant.

James H. Gillis, Dept. of Professional Regulation, Tallahassee, for appellee.

ZEHMER, Judge.

Appealing from a final order of the Department of Professional Regulation, Board of Veterinary Medicine (Board), finding him guilty of negligence and incompetency in the practice of veterinary medicine, appellant contends that the Board erroneously substituted its own findings of fact for the findings of the hearing officer and that the Board's order is not supported by competent substantial evidence. We agree and reverse.

On March 27, 1981, an administrative complaint was filed by the Board charging in two counts that Dr. Purvis was guilty of negligence and incompetence in the practice of veterinary medicine and that Dr. Purvis failed to maintain proper records as required by statute and regulatory rule. The Board voluntarily dismissed the charge of failure to maintain records, and a formal administrative hearing on the remaining count was held before the Department of Administrative Hearings.

Evidence presented at the hearing showed that on June 14, 1980, Dr. Purvis treated a black Labrador Retriever that had been struck by an automobile. The dog, when brought to him on a Saturday morning by its owners, was comatose. Dr. Purvis immediately examined the dog and opined that it had suffered a concussion and spinal shock. Dr. Purvis indicated that only time would tell whether the dog would recover, and said he would call the owners and let them know how the dog was doing. After the owners left the office, Dr. Purvis treated the dog with antibiotics and an intravenous injection for shock.

Because they had not received a call from Dr. Purvis, the owners returned to his office on Sunday morning. The office was closed, but around noon they found a caretaker who let them in. As the owners describe it, they found their dog comatose and immobile, saturated with urine and its own defecation, in a cage in the examining room. Later that afternoon, Dr. Purvis received a call from the owners and went down to the office to check on the dog. While at the office, he gave the dog 500 cubic centimeters of fluid and attempted to clean the still comatose animal as best he could. Because the dog was incontinent, it was constantly dribbling urine and fecal matter, which made it very difficult to keep the animal clean. Dr. Purvis then called the owners and reported that the dog, although still comatose, had shown some improvement because it was making some movements.

On Monday morning, the owners removed their dog to their own veterinarian, Dr. Wood, who examined it and made two X rays. His physical examination revealed that the dog was clearly a quadraplegic, and he recommended euthanasia. The primary purpose of the X rays, according to Dr. Wood, was to help the owners understand his recommendation of euthanasia. Dr. Wood was called as a witness for the Board and testified that he could not state that the treatment given by Dr. Purvis was negligent or incompetent. No other expert testified on behalf of the Board.

The hearing officer filed a recommended order containing various findings of fact, including a finding that "there was no evidence that Dr. Purvis's care fell below the standard of care for veterinarians in the community." Based upon these findings, the hearing officer concluded that the Board had failed to prove its charges against Dr. Purvis. Counsel for the Board did not file any exceptions to the recommended order and urged the Board to accept the findings and conclusions of the hearing officer. On January 26, 1984, the Board considered and rejected the recommended order at a regularly scheduled public meeting. On February 3, 1984, the Board entered its final order adopting, with a single exception, all of the hearing officer's findings of fact. The Board substituted its finding that "Dr. Purvis did not make a presumptive diagnosis, and his evaluation, documentation, ¹ and therapy fell below the standard of care provided by veterinarians in the community" for the hearing officer's finding quoted above. Based upon its substituted finding, the Board concluded that Dr. Purvis was guilty of negligence and incompetency and imposed a $350 fine and two years probation.

Section 474.214(1)(q), Florida Statutes, sets forth "negligence, incompetency or misconduct, in the practice of veterinary medicine" as a ground for disciplinary action. The parties to this appeal have treated "negligence" and "incompetency" as meaning a failure to comply with the minimum standard of care or treatment required of a veterinarian under the circumstances. We accept that construction of this penal statute. Unlike a charge of violating a statute or rule under section 474.214(1)(g), which requires no proof of a standard of care, the charge against Dr. Purvis necessarily required evidentiary proof of some standard of professional conduct as well as deviation therefrom.

As evidentiary support for its final order, the Board primarily relies upon the records of Dr. Purvis allegedly showing that he failed to make a presumptive diagnosis of the dog's condition upon his initial examination. Dr. Purvis testified, however, that upon examining the dog he diagnosed it as having a concussion and spinal shock, and his testimony was accepted by the hearing officer...